Bradley v. Williams

• Decision Date: 28 October 1924
• Docket Number: 6 Div. 480.
• Citation: 101 So. 808,20 Ala.App. 308
• Parties: BRADLEY ET AL. v. WILLIAMS.
• Court: Alabama Court of Appeals

101 So. 808

20 Ala.App. 308

BRADLEY ET AL. v. WILLIAMS.

6 Div. 480.

Court of Appeals of Alabama

October 28, 1924

Appeal from Circuit Court, Jefferson County; Joe C. Hail, Judge.

Action for damages by Fannie Williams against Lee C. Bradley and J S. Pevear, as receivers of the Birmingham Railway, Light &amp Power Company. Judgment for plaintiff, and defendants appeal. Affirmed.

Tillman Bradley & Baldwin and A. K. Foster, all of Birmingham, for appellants.

Black & Harris and J. C. Burton, all of Birmingham, for appellee.

SAMFORD J.

The complaint was in two counts, claiming damages from the defendant on account of injury sustained while plaintiff was attempting to board one of defendant's street cars. The pleas were the general issue and contributory negligence. The evidence was conflicting; that for the plaintiff tending to prove the plaintiff's case, and that for defendant tending to prove contributory negligence.

At the conclusion of the evidence and after the court had orally charged the jury, both on the law of negligence and contributory negligence, the defendant requested in writing the giving of the following charge:

"If you believe from the evidence that the plaintiff was negligent in the manner in which she attempted to board the car at the time and place in question, and that such negligence was the proximate cause of the alleged injury, your verdict cannot be for the plaintiff under count 1 of the complaint."

In the court's oral charge the court said:

"Contributory negligence means that she was herself negligent and contributed to her own injuries, and if you find that her injuries were proximately caused by her own negligence, then the defendant would be entitled to a verdict at your hands; or if you find that the defendant did not negligently hurt her, and that the closing of the door, or the manner in which she claims they were negligent, was not the proximate cause of her injuries, as alleged in the complaint, she would not be entitled to recover."

The court also, at the request of defendant in writing, gave this charge:

"If you find from the evidence that the plaintiff was negligent in the manner in which she attempted to board the street car at the time and place in question, and that such negligence proximately caused or contributed to the alleged injury in question, you cannot find for the plaintiff on either count of the complaint, even though you may also find that the defendant's agents, servants, or employees in charge of the street car acting in the line and scope of their authority were also guilty of some negligence which was also a contributing cause of the injury."

These instructions fairly and substantially cover the proposition of law embraced in the refused charge supra. The case of Tannehill v. B. R. L. & P. Co., 178 Ala. 297, 58 So 198, is not in point here. In that case the charge was based upon evidence tending to prove that plaintiff's injuries were sustained at a different time, place, and under different circumstances to those made the basis of the complaint. Under such a state of facts, a plea of contributory negligence would not be essential. In the instant case, the defendant is undertaking to defend, not upon the theory that plaintiff was hurt at a different time and place from that alleged, but that plaintiff's own negligence contributed to her injury at that time and place as alleged in the complaint.

Charge 5 refused to defendant was as follows:

"I charge you, gentlemen of the jury, that if you find from the evidence that the plaintiff did not present herself on the occasion in question in the proper time, place, and manner for transportation upon said street car, then I charge you that the plaintiff was not a passenger, but, on the contrary, was a trespasser, and that the defendant's only duty towards her was one of slight care to refrain from injuring her by the use of due care after her presence was discovered."

A person who with bona fide intention of becoming a passenger enters or attempts to enter or board a street car, even before he has gotten entirely into the car, becomes a passenger, provided he does so in a proper place and time and in a proper manner. Such is the rule laid down in 10 Corpus Juris and supported by many authorities. We go a step further and hold that where a street car stops at a street corner in a city, where it is usual to take on and discharge passengers, and opens its door such act is an invitation to all persons there present to become passengers, and, when such persons evidence such intention by proceeding to board such car, they become passengers within the meaning of the law fixing the status of the parties. B. & A. R. Co. v. Norris, 4 Ala. App. 363, 59 So. 66; N. B'ham St. Ry. Co. v. Liddicoat, 99 Ala. 545, 13...